The Odd Clauses

by Jay Wexler

Publisher:

Beacon

Copyright:

2011

ISBN:

0-8070-0089-2

Format:

Trade paperback

Pages:

193

The subtitle of this book summarizes it nicely: Understanding the
Constitution through Ten of Its Most Curious Provisions. (The
constitution in question is the United States Constitution.) It's a sort
of popularization of US constitutional law, but rather than look at the
most well-known and controversial parts, it takes a look at some of the
odd side points, obscure clauses, or clauses that one rarely thinks about
because they rarely appear in the news. This is partly a tour of
curiosity aimed at those who like legal trivia, but it also provides,
indirectly, a look at how constitutional law is made and debated, and at
some of the burning concerns at the time of the writing that have since
faded away. Sometimes why the concern has faded is as interesting as the
original problem.

This is the sort of book whose table of contents provides a lot of insight
into what you're getting. It has ten chapters, each devoted to a
particular clause or amendment: incompatibility, weights and measures,
recess appointments (one of the rare ones that has made the news),
original jurisdiction, natural-born citizen (odd, but sadly now not at all
obscure), letters of marque and reprisal, titles of nobility, bills of
attainder, and the 3rd and 21st amendments. (For those who haven't
memorized all the amendments to the US Constitution, the 3rd is the
prohibition on quartering soldiers in private homes and the 21st is
Prohibition, which here is examined not for its core intent but for the
implications for federalism.)

As you can see, this is quite a selection, and while the clauses are often
obscure, the issues raised by them are still generally quite active.
There are some that were intensely controversial at the time of the
original debate that are little more than amusing trivia at this point
(the prohibition on officers of the United States taking titles of
nobility), or have become so much a part of the structure of the
government that people rarely given them a second thought (such as the
incompatibility clause, which prohibits members of Congress from holding
positions in the executive branch). But most of these clauses establish
ground rules for the US government that are still quite current today,
even if the legal terminology used at the time is no longer familiar.

A good example is the clause prohibiting bills of attainder, something
that the writers of the US Constitution saw no need to define. A bill of
attainder is an act of a legislature declaring a person guilty of a crime
and assigning some punishment without trial. Framed that way, it seems
like an obvious extension of the separation of powers system that the US
government is constructed around, but unlikely to provoke much modern
controversy. However, as Wexler explains quite lucidly, there's a reason
why this clause is right next to the prohibition on ex post facto
laws. While no one would stand for the US Congress declaring guilt on a
matter of criminal law, it has written some startlingly specific laws that
seem aimed solely at specific individuals or organizations, which is
exactly the sort of behavior that this prohibition, interpreted broadly,
was intended to prevent.

Similarly, one might think that Congress's power to issue letters of
marque and reprisal is little more than ground for an interesting history
lesson. But that clause is deeply entangled with the checkered history of
US declarations of war and controversies over Congressional oversight, and
Wexler uses it as a jumping-off point to take a look at the implications
for the modern habit of undeclared wars fought by military contractors.

This is a short book, so these treatments are necessarily brief. Some of
them are also fairly minor; for example, the discussion of the weights and
measures clause is mostly an extended rant on the US refusal to adopt the
metric system. That's a sentiment with which I entirely agree, but I'm
not sure it has much to do with constitutional law. But Wexler is an
entertaining and concise writer; even when the discussion is relatively
shallow, I enjoyed reading his analysis. (I will warn, though, that he
takes a few potshots from a liberal perspective, so one's enjoyment of his
humor may to some extent depend on your personal political allegiances.)

I wouldn't rush out to find this book, but I found it mildly diverting and
occasionally quite informative. The chapter on original jurisdiction, for
instance, explained how the Supreme Court handles certain classes of cases
that must be filed directly with it, despite not being a trial court.
This was a question that I didn't even know I had, and a side system of
judicial procedure that turned out to be surprisingly interesting.

I suspect The Odd Clauses will be the most interesting to people
who have only a news media understanding of the US Constitution. I went
through a personal libertarian period, during which I read the
constitution in detail and sought out some discussions of its specifics,
so quite a bit of this book was familiar ground to me. Others without
that study background may find more novelty. But even with that
background, I was entertained, and don't regret buying it.

One note, though: I bought this book on the recommendation of Kevin
Underhill, author Lowering the Bar,
which is a masterpiece of dry humor. If you're looking for legal humor,
parts of The Odd Clauses are mildly funny, but Lowering the
Bar is the sort of site that will have you staying up late reading just
one more page of archives and reading bits aloud to anyone nearby.